Court releases October calendar

Posted Wed, July 19th, 2017 9:59 pm by Amy Howe

The Supreme Court term that ended in late June may have lacked the high-profile cases found in many of the terms that preceded it, but the new term will have no shortage of blockbusters. Today the justices released the calendar for October’s oral arguments, which will include not only the dispute over President Donald Trump’s “travel ban” but also a major dispute over partisan gerrymandering, two immigration cases that have been scheduled for a second round of oral argument, and an important arbitration case in which the United States has switched sides and now supports the employers.

The headliner in the October calendar is the litigation over Trump’s March 6 executive order, which put a freeze on both new visas for travelers from six predominantly Muslim countries (Iran, Libya, Sudan, Somalia, Syria and Yemen) and the admission of refugees into the United States. Two lower courts had blocked the Trump administration from implementing the order, but on June 26 the Supreme Court reinstated the ban, allowing the government to enforce it against travelers and refugees who do not already have a genuine relationship with an individual or institution in the United States. That ruling kicked off another round of litigation over the scope of the June 26 order, culminating in an order earlier today in which the justices declined to disturb a Hawaii district judge’s definition of “close” relatives (which was more expansive than the government would have liked) but put on hold his definition of which refugees should be allowed to enter the country. In the oral argument on the “travel ban” scheduled for October 10, the justices will be reviewing the lower courts’ decisions barring the government from enforcing the order; the two cases – Trump v. Hawaii and Trump v. International Refugee Assistance Project – have been consolidated for one hour of oral argument.

On October 3, the justices will hear oral argument in Gill v. Whitford, in which they will review Wisconsin’s appeal from a decision by a three-judge federal district court striking down the state’s redistricting map, which was created by the Republican-controlled legislature after the 2010 census. The district court ruled that the map was the product of partisan gerrymandering – that is, the practice of drawing a legislative map to give one political party an advantage. In 2004, a deeply divided Supreme Court declined to weigh in on a partisan-gerrymandering challenge to Pennsylvania’s redistricting map. Four justices agreed that courts should never review partisan-gerrymandering cases because it is too hard to formulate a manageable standard, while four justices contended that courts should be able to review those cases. Justice Anthony Kennedy provided the crucial vote: He believed that the justices should stay out of the Pennsylvania case but left open the possibility that courts could review similar cases in the future.

On October 2, the justices will kick off their term with three arbitration cases, which have been consolidated for one hour of oral argument. In National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris, the justices agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve disputes between an employer and its employees through arbitration are enforceable under the Federal Arbitration Act. The NLRB – then represented by the Office of the Solicitor General – filed its petition for review in September 2016, before the presidential election in November. In late June of this year, the United States (but not the NLRB) filed a “friend of the court” brief supporting the employers, rather than the employees; the NLRB is likely to file its own brief in August.

The October 2 oral argument in the arbitration cases will be followed by a reargument of Sessions v. Dimaya, in which the justices will again consider whether the Immigration and Nationality Act’s definition of “crime of violence” – for which a noncitizen can be deported from the United States – is so ambiguous that it violates the Constitution’s bar on vague criminal laws. On October 3, the justices will hear oral argument for a second time in Jennings v. Rodriguez, in which they are considering whether immigrants who are detained have a right to appear in front of an immigration judge and seek their release after making payments to guarantee that they will appear at later proceedings in the same case. The court had only eight members when it heard oral argument in these cases for the first time; its late-June order setting the cases for a second round of oral argument suggests that the eight justices attempted to reach an agreement but were ultimately deadlocked, making the court’s newest justice, Neil Gorsuch, the key vote.

Here is a complete list of the cases slated for oral argument in October, with brief summaries of the cases not already covered above:

District of Columbia v. Wesby (October 4): Whether police officers who responded to a noise complaint and found late-night partiers at a vacant home had probable cause to arrest them for trespassing, when the partiers told the officers that they had been invited to the house and had no intention to trespass; and whether the police officers are entitled to qualified immunity.

Class v. United States (October 4): Whether a defendant who pleads guilty waives the right to challenge the constitutionality of the statute under which he was convicted.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.